Let us say you have for whatever reason a vast amount of land. Before England’s thriving development of the woollen industry (involving as it did the taxation of exports in the hands of foreign merchants), land ownership was the predominant feudal source of income for the Crown (that is, the current king). As a result limitations upon ownership were of interest and consequence. Whether the device were to extend the period of real or “vested” entitlement (against which the Rule against Perpetuities applies) or to promote the legal fiction of what we now call a “corporation” that is, a legal person that has perpetual existence and never dies (against which the law of mortmain applies), the conclusion is that ownership of land can never be forever undetermined; and, that violation of that status cannot by any interpretation limit the Crown’s privilege of taxation or, in the event of indeterminable ownership, the Crown’s privilege of escheat (reversion to the crown where prior owner dies without heirs).
Overriding this esoteric legality was the Court of Chancery. This court of equity was designed to overcome the blunt rule that “you cannot do indirectly what you cannot do directly” which is another of those digestible legal maxims similar to “you cannot give what you do not have” sometimes dignified by the latin translation Nemo dat quod non habet.
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or “inequity”) of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the estates of lunatics and the guardianship of infants (and, I might add, formerly married women).
These laws grew amidst the vital claim to ownership of the lands which from the medieval outset of popular government in the 1200s were critical to dominance. While these laws therefore affect primarily the ruling parties (whether classified as papal, royal, baronial or otherwise) the surviving distinction is that in modern times the so-called gentry or successful merchants and industrialists have the driving interest in the outcome of government.
Perpetual existence refers to the ongoing existence of a business entity without a defined end date or expiration. It means that the business continues to exist regardless of changes in ownership, management, or the departure of its founders, providing continuity and stability to its operations.
In the past century the interpretation of land ownership has evolved to include the condominium (the so-called “fee in the air”) and life interests (the snobbish cooperative mechanism to defeat ownership by hoi polloi, people who need a mortgage to pledge before they can acquire the “ownership” or entitlement by any other means). It is increasingly debatable whether the application of charitable status is of interest to the public (as their commensurate religious beliefs dwindle). Reportedly the “church” is selling its real estate interests in order to survive its debt management. They may ultimately go the same path as erstwhile feudal lords.
Religious orders continue to overcome any limitation upon perpetual ownership by employing their charitable status to overcome any proscription which might have been designed to defeat taxation.
The rule against perpetuities is a legal rule in common law that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written. Specifically, the rule forbids a person from creating future interests (traditionally contingent remainders and executory interests) in property that would vest beyond 21 years after the lifetimes of those living at the time of creation of the interest, often expressed as a “life in being plus twenty-one years”. In essence, the rule prevents a person from putting qualifications and criteria in a deed or a will that would continue to affect the ownership of property long after he or she has died, a concept often referred to as control by the “dead hand” or “mortmain“.
Mortmain is the perpetual, inalienable ownership of real estate by a corporation or legal institution; the term is usually used in the context of its prohibition. Historically, the land owner usually would be the religious office of a church; today, insofar as mortmain prohibitions against perpetual ownership still exist, it refers most often to modern companies and charitable trusts. The term mortmain is derived from Mediaeval Latin mortua manus, literally “dead hand”, through Old French morte main (in modern French, mainmorte).
During the Middle Ages in Western European countries such as England, the Roman Catholic Church acquired a substantial amount of real estate. As the Church and religious orders were each recognised as a legal person separate from the office holder who administered the Church land (such as the abbot or the bishop), the land would not escheat on the death of the holder, or pass by inheritance, as the Church and the religious orders would not die. The land was held in perpetuity. This was in contrast to feudal practice in which the nobility would hold land granted by the king in return for service, especially service in war. Over time, the Church gained a large share of land in many feudal states; this was a cause of increasing tension between the Church and the Crown.
The cy-près doctrine (lit. ’so close’, modern French: si près or aussi près) is a legal doctrine which allows a court to amend a legal document to enforce it “as near as possible” to the original intent of the instrument, in situations where it becomes impossible, impracticable, or illegal to enforce it under its original terms. The doctrine first arose in the English courts of equity, originating in the law of charitable trusts, but it has since been applied in the context of class action settlements in the United States.
An example of the doctrine’s application is found in the Massachusetts Supreme Judicial Court case Jackson v. Phillips, where the testator, Francis Jackson, created a trust to be used to “create a public sentiment that will put an end to negro slavery in this country”. Four years after Jackson’s death, slavery was abolished by the Thirteenth Amendment, nullifying the express purpose of the trust. Some of Jackson’s family members attempted to dissolve the trust in order to collect its proceeds, but the court disagreed, invoking cy-près and finding that Jackson’s intent would be best served by using the trust “to promote the education, support and interests of the freedmen, lately slaves, in those states in which slavery had been so abolished”.